AB v The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors

In historic child abuse claims, the discretion under section 33 of the Limitation Act 1980 is unfettered, but the claimant bears the burden of showing that it would be equitable to disapply the limitation period. The decisive consideration is the effect of delay on the fairness of the trial, particularly the cogency of the evidence and the defendant’s ability to investigate and defend the claim. Delay is relevant through its evidential consequences, not merely because it is lengthy. A claimant’s difficult background and the recognised psychological effects of abuse may explain delay, but they do not establish entitlement to an extension. Moral culpability is not ordinarily a material factor in the section 33 balancing exercise. Where a fair trial is no longer possible, the claim must not proceed.

The claimant alleged that he had suffered sexual and physical abuse while resident at St William’s School between 1973 and 1975. Proceedings were issued in 2005, more than 25 years after the primary limitation period expired. The defendants accepted that the claim was governed by the three-year personal injury period but argued that the court should not exercise its discretion under section 33 of the Limitation Act 1980.

The central issues were whether the delay was sufficiently explained, whether the passage of time had caused material evidential prejudice, and whether it remained fair and equitable for the action to proceed. The judge also made alternative findings on the alleged abuse in case the limitation decision was successfully appealed.

1. Limitation. The claimant bore the burden of persuading the court to exercise its unfettered discretion under section 33 of the Limitation Act 1980. The overarching question was whether, having regard to all the circumstances and the matters identified in section 33(3), it would be equitable to allow the action to proceed.
2. The guidance in A v Hoare and subsequent authorities required attention to the claimant’s reasons for delay and, especially, the effect of delay on the cogency of the evidence. The recognised shame, embarrassment, repression and psychological difficulties associated with childhood sexual abuse could provide a good reason for delay, but they were not self-proving and had to be assessed in the particular case.
3. The claim was issued approximately 25 years and six months after expiry of the limitation period. Important records were missing, and several persons to whom the claimant said he had made contemporaneous complaints were dead or untraceable. The absence of those witnesses materially impaired the defendants’ ability to investigate and challenge the allegations. The claimant’s evidence was also affected by inconsistencies, limited detail and the passage of time.
4. The court rejected the submission that the alleged perpetrators’ moral culpability should materially favour the claimant. Compensation for tort was not generally assessed by reference to moral culpability, and the relevant balance concerned the effect of delay on the parties’ ability to receive a fair trial.
5. In the circumstances, the claim was stale and a fair trial could not properly take place. It was therefore not equitable to allow the action to proceed. The claim was dismissed.
6. As an alternative, the judge found that the claimant had failed to prove on the balance of probabilities that the alleged physical or sexual abuse had occurred. No positive findings were made in his favour. Causation and quantum therefore did not arise.

The judgment itself records earlier appellate decisions concerning the potential vicarious liability of the defendants, but those decisions concerned the group litigation’s preliminary liability issue rather than this claimant’s individual claim. This judgment was a first-instance determination of limitation and, alternatively, the factual allegations.